Judge won’t let parties out of train fatality suit

WINFIELD, W.Va. — A judge on Friday rejected efforts by the Putnam County Board of Education and the city of Hurricane to get out of a lawsuit over a Hurricane teenager killed by a CSX Transportation train in 2012.

Putnam Circuit Judge Phillip Stowers denied motions by the city and school board to dismiss the suit Richard Dwayne Ball filed against them and CSX in January. Ball’s son, Jacob Dwayne Ball, was 16 and a junior at Hurricane High School when he was killed by the train.

“I’m hesitant to grant a motion to dismiss on, one, a wrongful death case, and, two, on one in which there may a variety of circumstances that I don’t know,” Stowers said.

The judge said he felt Guy Bucci, an attorney for Richard Dwayne Ball, was “shoving a very large rock up a very steep hill” in some of his allegations that the city and school board were partly responsible for the teenager’s death. Regardless, the judge said, there are too much unknown to dismiss the city and school board from the suit before discovery — the process of attorneys gathering evidence.

Stowers said, for instance, that he didn’t know exactly where Jacob Ball was hit or on whose property he walked — state roads, city sidewalks, etc. — before he was killed.

“And all those things are things I have to guess about,” the judge said.

The school board argued that it bore no responsibility partly because the incident didn’t occur on school property.

The judge said he also needs to see more evidence before deciding what duties the city and school board might have neglected that could’ve saved Jacob Ball. In one filing, his father alleges the city was negligent because it hired a “certified safety police officer” at Hurricane High who allegedly “did absolutely nothing to warn, instruct or otherwise protect the deceased from known danger.”

Richard Ball’s suit states his son was walking around CSX’s tracks on his way home from school on Jan. 31, 2012, when a train hit him from behind. Jacob Ball couldn’t hear the train because he was wearing headphones and CSX failed to give an audible warning, such as a whistle, the suit alleges.

People at the scene of his death, however, reported they heard horns on the train and at least one nearby bus blaring. Students said Ball was known for listening to loud heavy metal music. A neighbor, Tamera Rutledge, told The Charleston Gazette shortly after his death that she believed it was an accident, but she said he was walking home because he was bullied.

CSX attorney Robert Massie told the Gazette a camera on the train recorded Jacob Ball standing on the tracks, not at a crossing, and wearing headphones. Massie said he didn’t turn around before it hit him.

The suit states the area Jacob Ball was walking in was the usual path for him, other students and other residents, and it argues that the defendants knew the tracks allowed access to students and other pedestrians.

“Despite the nuisance created by this area of track, there were not adequate warnings or barriers present to deter students/pedestrians,” the suit states. It also argues CSX had the responsibility to, among other things, operate the train at a safe speed considering the pedestrians in the area. CSX argued in its answer that Jacob Ball was trespassing and said his alleged negligence contributed to and was perhaps a greater cause of his death.

Richard Ball is seeking compensation, including punitive damages, for the alleged wrongful death. The trial is set for May 2015.